Petition for Writ of Certiorari — Bell v. Bell

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84-9 os ( / Office - Supreme Court, U.S.

FILED

DEC 1% 1984

IN THE SUPREME COURT OF THE UNITED TADS Roer . sTEVAS

CLERK

October Term,

No.

ANNE C. BELL, Petitioner

vs.

LOWRY M. BELL, JR., Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT FOR

THE COMMONWEALTH OF MASSACHUSETTS

John P. White, Jr.

Counsel for Petitioner

White, Inker, Aronson,

Connelly & Norton,P.C.

One Washington Mall

Boston, Ma. 02108

(617) 367-7700

Of Counsel:

Monroe L. Inker

Margot Ames Clower

Ann Wagner

1 of

fle

QUESTIONS PRESENTED

1. Whether the termination of

petitioner's support payments ordered

under a judgment of divorce solely upon

the grount"ee petitioner's intimate

association with an unrelated man on

a regular basis violates petitioner's

rights of association and privacy

guaranteed by the First, Fourth, Ninth

and Fourteenth Amendments to the United

States Constitution.

2. Whether, in terminating peti-

tioner's support payments ordered under

a judgment of divorce solely upon the

ground of petitioner's intimate assoc-

iation with an unrelated man on a rea-

ular basis, the court below created a

classification with no rational rela-

tionship to any legitimate state

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objective in violation of the Due

Process and Equal Protection Clauses

of the Fourteenth Amendment.

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TABLE OF CONTENTS

Questions Presented

Opinions Below

Statement of Jurisdictional

Grounds

Constitutional Provisions

Involved

Statement of the case

Reasons for Granting the Writ

Conclusion

iii.

SS SOE Aa SS

9 Wena Writ Pat et

TABLE OF AUTHORITIES CITED

Cases: Page

Abbott v. Abbott, 282 N.W.2d 561

[ee Beseh es. «6 & © 0.6 © 2 @ 30

Alibrando v. Alibrando, 375 A.2d

> (B.C. C&s OF App. A977) . « « 29

Bailey v. Dillon, 186 Mass. 244

oo | er ee ee oe ee ee . 22

Bell v. Bell, 393 Mass. 20, 468

MiSs 2G BSS CASCR) uc « so ce « « 0 «4688

Bowman v. Bowman, 163 Neb. 336,

79 Wel. 2G°554 (1956) .« « « « 30

Brinkerhoff-Faris Trust & Savings

Cos VW. Bi21, 288: 0.8s° 673 (2930) 7,21

Brister v. Brister, 92 N.M. 71l,

306 Peae BAG? -5ASTSh« 6 & © © « 30

Byrd v. Byrd, 252 Ark. 202, 478

Sse ae 6S Cheeses 6-4 © 8 8 o 29

Clifford v. Clifford, 354 Mass.

Ban Capea 6 -s bike 8 oe ee 12

Commonwealth v. Catlin, 10 Mass.

S t2eees—»—<—¢--4—-4—s «vs * 24

Daniels v. Daniels, 82 Idaho 210,

gaa Rs Be 206 Cheeer 2 -2-e «© @ 30

Davisson v. Davisson, 12 Mass.

Ct. App. 420, 425 N.E. 2d 762

CAORRe 6 Cie aed bla e8 ae

Dominick v. Dominick, 18 Mass. App.

Ct. 85, 392 Mass. 1103 (1984). . 23

Douglas v. Alabama, 380 U.S. 415

Cee «4 'OU.G eee ECR ees es 7

Edwards v. Cockburn, 264 Mass. 112

Ci) Pr ae or ae ee eo « « « 44, 15,16

Eisenstadt v. Baird, 405 U.S. 438

(1972) e e . . . . 7 . * ° e e . 27

Finer v. Steuer , 225 Mass. 6ll

(1926) ° * ° ° 7 ° ° 7 e . 7 14

Fleming v. Fleming, 221 Kan. 290,

woe Go Be: yy re 30

iv.

e ‘ °

- §4 rs

rot CC

7 - ce te

a P- 7

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ie Susae ise zecrates

: ik - so tae ee. Y.

s, Seem hice hewiot otf ae

; : Hage Li

Ane ote: een Cera

pus ee Ray iets ee)

Cases: Page

Gayet v. Gayet, 92 N.J. 149, 456

Ma Ge BOa (ARGS). «2 + « 0 & 6

Gerrig v. Sneirson, 344 Mass. 518

en «2. << + © ee} ee 10

Glazer v. Silverman, 354 Mass. 177

So a a ae a a a a a a Pe |

Gleason v. Mann, 312 Mass. 420

ne a ae ee et ue ee eel

Graves v. Graves, 108 Mass. 314

SS a inl Ta hie ag GT Ga Sa ee 12

Green v. Richmond, 369 Mass. 47

ee << s koe to +’. a ek eS eR; 20

Griswold v. Connecticut, 381 U.S.

to Sa). i ee are . ree,

Hall v. Hall, 82 Misc. 2d 814,

372 W.Y.8. 24 344 (Fam. Ct.

1976), affirmed mem., 55 A.D.

2d 752, 389 N.Y.S. 2d 448

oe aes) | ee

Heistand v. Heistand, 384 Mass.

7. ae ee ee we tle ea eB, R452

Henry v. Mississippi, 379 U.S. 443.. 19

Husband B.W.D. v. Wife B.A.D.,

436 A. 2d 1263 (Del. 1981)... 29

Ivey v. Ivey, 378 So. 2d 1151

(Ase. Civs« Row. 1979) .« « s+ « 32

Knox v. Remick, 371 Mass. 433

Seren) es. ce 4 tee bee « te ee 23

Loring v. Thorndike, 87 Mass. 257

eee <x << & 4 & & ee eR + + 14

McRae v. McRae, 381 So. 2d 1052

aes AEG) «4 & Ss 8 * 6 we © 30

Meyers v. Pope, 110 Mass. 314

[oaeee ka 6 8 ke eS Ke 14

Missouri ex rei. Missouri Ins.

Co. v. Gehner, 281 U.S. 313

Cnn, a 6 el Se a ee CA ee 8s 7

Mitchell v. Mitchell, 418 A. 2d

Dae ees 2) «6 65 he Ew, 30

Myhre v. Myhre, 269 N.W. 2d 905

ett 2 i« ee eee ek ee 30

Cases: Page

Newburyport v. Beothbay 9 Mass.

414 (1812) * o . 7. 7 . * . > * 7. 15

O'Donnell v. Bane, 385 Mass. 114

ae <-< . s «6 « 6 « + 0s « ae

Osborne v. Osborne, 384 Mass. 591

(Apeae «© «© 6 ec > + me

Partridge v. Partridge, 14 Mass.

App. Ct. 901 (1982) . . « « « « 13

Pruneyard Shopping Center v.

Robins, 447 U.S. 74 (1980). . . 7,17

Reuter v. Ballard, 267 Mass. 557

el, | BP ee ee ee ee eee 19

Riley v. Murphy, 265 Mass. 420

O) - ) ) Pa ee eS

Roberts v. Roberts, 657 P. 2d

Ree taeen 8 lf ltl lw ell ek ef} 32

Robbins v. Robbins, 342 Mass. 247

[Seen s 6s s « @ 8.8 6 6 © @ 10

Roe v. Wade, 410 U.S. 113 (1973) 28

Rubisoff v. Rubisoff, 242 Miss.

225, 133 So. 24 534 (1961)... 30

Saunders v. Shaw, 244 U.S. 317

Taeaee + 6 8 eS eee ee el 7

Sims v. Sims, 245 Ga. 680,266

S.E. 44 492 (1980) . .- -« 32

Southworth v. Treadwell, 168 Mass.

Bae Gt) «© 0 6 6 ee eh tl le 9

Stallings v. Stallings, 36 N.C.

App. 643, 244 S.E. 2d 494

+ 3, Se oe a ee er a oe ee ee

Stanley v. Georgia, 394 U.S. 557

>) a ir la ee a a

Street v. New York, 394 U.S. 576

[nny - 4 8 0-4 s+ -& es Se oe 7

Sullivan v. Little Hunting

Park, Inc., 396 U.S. 229 (1969)18,19

Surabian v. Surabian, 362 Mass.

wae Seetal' «6 6 6 s e+ 8 & o& @ Be@a

VanGorder v. VanGorder, 110 Wis.

2d 188, 327 N.W. 2d 674 (1983). 30

Wight v. Wight, 284 S.E. 2d 625

[es Vee Bears 6 & Se « 6 3 -é 30

vi.

Cases: Page

Williams v. State of Georgia, 349

a Sere ERED 6 © © © © © « «© 18

Wolfe v. Wolfe, 46 Ohio St. 399,

on ues ee Me C2976). « 6 oo 30

Ziegler v. McKinlay, 318 Mass. 765

DTD MOMs 6 6 6 © ¢ « © « « 10

Zytka v. Dmochowski, 302 Mass. 63

Dt. . 6 «6 6 «© & «© © ec e 20

Constitutional and Statutory Provisions:

EES ee ee ee ee ee ee

Pourteenth Amendment .... .3,4,26,27,32

Fourth Amendment ......« -» 3,26

PPP. 5 5 6 6 6 0 «© «© « 394,26

Alabama Code, §30-2-55 (1983) .. 31,32,33

Ga. Code Ann. §30-220(b) (1980). . 31,32

ene meee meee Eee S248 . 6 tl le lel wl C80 38

Gnas wees. ADM. Cit. 12,$1289(D) . 32,33

Mass. Gen. Laws Ann. c. 207,

DC Merc ie 6c 5 6 5 6 © © o e« 14

Penn. Stat. Ann. tit. 23, §507

(Purdon Supp. 1984-1985) ..... 31

Utah Code Ann. §30-3-5(3) (Supp.

C(((UUPPP TEE TE S 6 « 6 «© «© © ec © 3k

Other Authorities:

Comment, "The Effect of Third Party

Cohabitation on Alimony Payments",

15 Tulsa L.J. 772 (1980) ..... 33

S. Green and J. Long, Marriage

and Family Law Agreements (1984). . 34

Journal of Geriatric Psychiatry,

>) |

R. Jacobs, Life After Youth (1979). .

J.F. Lombard, Family Law §1309

OES 5g 6g 6 0 6 tl lw

Note, "Alimony, Cohabitation and

the Wages of Sin: A Statutory

Analysis", 33 Ala. L. Rev. 577 (1982) 33

vii.

Other Authorities:

Note, Alimony Modification: Co-

habitation of Ex-Wife with

Another Man, 7 Hofstra L. Rev.

471, 494-496 (1979) . « « « « « 33

Note, "Domestic Relations: Oklahoma's

Live-In Lover Statute: §1289(D)

of Title 12", 36 Okla. L. Rev.

S06 4400s) s# 060 «2 6 e@ & © 6 oo «(OS

| Strickman, "Marriage, Divorce and

the Constitution," 22 Boston

College L. Rev. 935 (1981) ... . 33

U.S. House of Representatives

Select Committee on Aging,

Women in Midlife-Security and

Fulfillment, Vol. 1 (1979)... .

Weitzman, "The Economics of

Divorce: Social and Economic

Consequences of Property,

Alimony and Child Support Awards,"

28 U.C.L.A. L. Rev. 1181 (1982). . 35

Weitzman and Dixon, "The Alimony

Myth: Does No-Fault Divorce Make

a Difference?" 14 Family Law

Quarterly 141 (1980) .....e«.. 35

Vili.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1984

No.

ANNE C. BELL, Petitioner,

vs.

LOWRY M. BELL, JR., Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT FOR

THE COMMONWEALTH OF MASSACHUSETTS

OPINIONS BELOW

The findings of fact and conclusions

of law of the Probate Court for the county

of Norfolk, which dismissed petitioner's

complaint for contempt, are unreported

and are appended hereto at p. A-44. The

opinion of the Court of Appeals for the

Commonwealth of Massachusetts, which

reversed the judgment of the Probate

Court, is officially reported at 16 Mass.

App. Ct. 188 and is unofficially reported

at 459 N.E.2d 109 (1983), and is appended

hereto at p. A-19. The opinion of the

Supreme Judicial Court for the Common-

wealth of Massachusetts, which affirmed

the judgment of the Probate Court, is

officially reported at 393 Mass. 20 and

is unofficially reported at 468 N.E.2d

859 (1984), and is appended hereto at

p. A-l.

STATEMENT OF JURISDICTIONAL GROUNDS

(i) Petitioner respectfully prays

that a writ of certiorari issue to review

the final order of the Supreme Judicial

Court for the Commonwealth of Massachusetts

made and entered on September 13, 1984,

and appended hereto at p. A-65. |

(ii) Petitioner filed no petition

for a rehearing in the court below and

made no application for an extension of

time within which to petition for

a writ of certiorari.

(iii) (not applicable)

(iv) The jurisdiction of this Court

is invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the First, Fourth,

Ninth and section one of the Fourteenth

Amendments to the United States Constitu-

tion. The First Amendment provides:

Congress shall make no law

respecting an establishment of

religion, or prohibiting the free

exercise thereof; or abridging the

freedom of speech, or of the press;

or the right of the people peaceabiy

to assemble, and to petition the

Government for a redress of griev-

ances.

The Fourth Amendment provides:

The right of the people to ke

secure in their persons, houses,

papers, and effects, against unreas-

onable searches and seizures, shall

not be violated, and no Warrants

shall issue, but upon probable cause,

supported by Oath or affirmation,

and particularly describing the place

to be searched, and the persons or

things to be seized.

The Ninth Amendment provides:

The enumeration in the Constit-

ution, of certain rights, shall not

be construed to deny or disparage

others retained by the people.

Section One of the Fourteenth

Amendment provides:

All persons born or naturalized

in the United States, and subject to

the jurisdiction thereof, are citi-

zens of the United States and of the

State wherein they reside. No State

shall make or enforce any law which

shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive

any person of life, liberty, or

property, without due process of

law; nor deny to any person within

its jurisdiction the equal protec-

tion of the laws.

STATEMENT OF THE CASE

This case has its genesis in a

judgment of divorce entered in the Pro-

bate Court for the county of Norfolk,

Massachusetts, on April 28, 1976, nunc

pro tunc November 28, 1975, when

petitioner and respondent were divorced

after twenty-six years of marriage

(R. 5-6). The judgment of divorce, by

reference to an agreement of the parties,

ordered that respondent make significant

monthly alimony payments to petitioner

for a period of fifteen years, or until

the happening of any one of several

contingencies, including petitioner's

living together with a member of the

opposite sex, so as to give the outward

appearance of marriage (R. 12). For

convenience, this contingency provision

is hereafter sometimes referred to as

the “outward appearance clause".

In a four-to-three decision, the

Massachusetts Supreme Judicial Court

interpreted this outward appearance

clause to apply to petitioner's "sharing

a bedroom with a man on a regular basis

lynless otherwise indicated, refer-

ences are to the printed record sub-

mitted in the Appeals Court below as

an "Appendix to the Briefs".

for approximately three years,” and held

that petitioner has thereby forfeited

her right under the judgment of divorce

to alimony. Bell v. Bell, 393 Mass. 20,

22, 468 N.E.2d 859, 861 (1984) (Appendix,

appended hereto, at p. A-6). Petitioner

claims that this construction and

application of the outward appearance

clause violates her federal constitution-

al rights to privacy and freedom of

association and to equal protection and

due process of the laws. The Massachu-

setts Supreme Judicial Court expressly

declined to consider petitioner's federal

constitutional claims on the ground that

those claims were not seasonably raised.

Petitioner recognizes that as a general

rule failure to raise a federal question

at the stage of proceedings required by

state law precludes review by this

Court. However, this case falls within

exceptions to this general rule.

Whether a federal question has been

sufficiently and timely raised ina

state court is itself a federal question

that this Court can decide for itself.

Street v. New York, 394 U.S. 576, 583

(1969); Douglas v. Alabama, 380 U.S.

415, 420-423 (1963). As a matter of

federal law, it is well-established

that a federal claim was timely raised if

the ruling of the state court could not

reasonably have been anticipated and

the federal claim was raised at the

earliest opportunity. Pruneyard

Shopping Center v. Robins, 447 U.S. 74,

85 n. 9 (1980); Brinkerhoff-Faris Trust

& Savings Co. v. Hill, 281 U.S. 673,

677-678 (1930); Missouri ex rel. Missouri

Ins. Co. v. Gehner, 281 U.S. 313, 320

(1930); Saunders v. Shaw, 244 U.S. 317,

320 (1917). In this case, the construc-

tion given the outward appearance clause

by the State Supreme Judicial Court

was unforeseeable and indefensible by

reference to prior Massachusetts deci-

sions. 2

Petitioner is well aware that this

Court has no power to revise the judgment

of the Massachusetts Supreme Judicial

Court on questions of state law. The

following discussion of Massachusetts

substantive law is necessary to show

that the construction given the outward

appearance clause by the court below

was unforeseeable, in support of

petitioner's view that, as a matter of

federal law, her federal constitutional

claims were seasonably raised in the

state court.

2Neither party advocated the construc-

tion given to the clause by the court

below. Nor was such a construction

adopted by any judge who had interpreted

the outward appearance clause previously

in the course of this litigation.

While there is no prior Massachu-

setts decision involving a provision for

the termination of alimony identical to

the outward appearance clause herein,

there are numerous decisions dating

back to the last century involving the

termination of alimony payments on

account of the “remarriage” of the

woman, which remarriage had in most

of the cases been annulled. [In all of

the cases where alimony was ordered

terminated, the ratio decidendi was

either that, as a result of the re-

marriage, the woman had acquired a

right to be supported by another man,

Glazer v. Silverman, 354 Mass. 177, 179

(1968); Southworth v. Treadwell, 168

Mass. 511, 513 (1897) or that termina-

tion of alimony payments was equitable

under the particular circumstances of

the case, Surabian v. Surabian, 362 Mass.

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342, 348 (1972); Gerrig v. Sneirson,

344 Mass. 518, 520-521 (1962). In two

other cases, the court found that the

circumstances relating to the wife's

need for support had not changed as a

result of her remarriage, and so refused

to modify its order for alimony.

Robbins v. Robbins, 342 Mass. 247, 252

(1961); Ziegler v. McKinlay, 318 Mass.

765, 767 (1945).

Any doubt that the dispositive

criteria in Massachusetts in cases in-

volving termination of alimony payments

have been support and other equitable

considerations is eliminated by Heistand

v. Heistand, 384 Mass. 20 (1981). In

Heistand, the Supreme Judicial Court

summarized the applicable law as follows:

Because the law of New York

entitled the wife to support from

her second husband after annul-

ment of her remarriage, this

10.

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court in Glazer? deemed it in-

equitable to allow the wife to

receive support from two hus-

bands. Id. at 180. In that

case this court also evaluated

a ceremonial, invalid marriage

according to its effect on

third parties. Id. at 178.

This court declined to hold

a husband liable for alimony

where he was entitled to rely

on the apparent validity of

his former wife's remarriage.

- e « Neither of the criteria

dispositive in Glazer -- double

support or third-party reliance

-- is evidence on the record

before us. Heistand v. Heistand,

384 Mass. 20, 24-25 (1981).4

Thus there is ample precedent in Mass-

achusetts decisions for resolving dis-

putes relating to the termination of

alimony payments to women who had re-

3Glazer v. Silverman, 354 Mass. 177

(1968).

4the Supreme Judicial Court reached

this conclusion in spite of undisputed

evidence that the woman participated in

a symbolic marriage ceremony, exchanging

vows and sending out printed announcements

and the man she "married" thereafter

moved into her house & paid her former

husband the $15,000 by which the woman

acquired full title to the house. Id.

at a2.

il,

married or who had formed a

""spousal-oriented' relationship,"

Id. at 24, by weighing support and

other equitable considerations. This

has been the rule whether the case arose

as a contract action based upon an

agreement of the parties or as a con-

tempt or modification proceeding based

upon the judgment of divorce.

Need for support has also always

been an essential consideration in

Massachusetts in regard to an award of

alimony; adultery or other misconduct

of the wife, standing alone, has never

been sufficient grounds to deny alimony.

Graves v. Graves, 108 Mass. 314, 317-318

(1871); Clifford v. Clifford, 354 Mass.

945, 3420 (1905). Over the iast century

Massachusetts courts have evolved to the

view that "(o)rdinarily matters such as

custody, support and alimony are not

12.

affected by such general considerations

as the relative moral rectitude of the

spouses or which spouse is awarded the

divorce." Davisson v. Davisson, 12 Mass.

Ct. App. 420, 425 N.E.2d 762, 765 (1981),

further app. review denied, 425 N.E.2d

762 (Mass. 1981). See also Partridge v.

Partridge, 14 Mass. App. Ct. 901, 919

(1982), wherein the Appeals Court

reversed an order denying alimony to a

woman who was living with a male compan-

ion, because the Appeals Court found

", »« « no indication of the amount of

support provided the wife by her com-

panion or whether it constitutes a

dependable financial resourse." Id.

at 919.

The construction given the outward

appearance clause by the court below

represents a radical departure from

prior Massachusetts law in a second

13.

important respect. Since 1840 Massachu-

setts has had a statute which provides

in pertinent part that "(m)arriage

may be proved .. . by evidence of

general repute or of cohabitation of

the parties as married persons .. .”

Mass. Gen. Laws Ann. c. 207, §47.

Decisions under this statute make it

clear that "cohabitation as married

persons" has always. been distinguished

in Massachusetts from "illicit" or

"meretricious” cohabitation. Riley v.

Murphy, 265 Mass. 420 (1929); Edwards

v. Cockburn, 264 Mass. 112 (1928);

Finer v. Steuer, 225 Mass. 611 (1926);

Meyers v. Pope, 110 Mass. 314 (1872);

Loring v. Thorndike, 87 Mass. 257 (1862).

In all of these decisions, there was a

holding out as man and wife by the

cohabitants and/or a recognition of

their relation as husband and wife by

14.

family, friends and the general

community. See also, Newburyport v.

Boothbay, 9 Mass. 414 (1812). For

example, in Riley v. Murphy, 265 Mass.

420 (1929), the factors relied upon by

the court in finding that the parties'

cohabitation evidenced marriage in-

cluded the woman's holding herself

out as the man's wife, her use of his

surname on her bank accounts, and the

couple's consistent reputation as

husband and wife amongst their family,

their neighbors and the community.

In Edwards v. Cockburn, 264 Mass,

112 (1928), the Supreme Judicial Court

stated:

Mere cohabitation of a man

and woman alone is not, under

the statute, evidence of marriage.

They must so cohabit "as

married persons", and not live

together merely in illicit in-

tercourse. Id. at 125.

In regard to evidence of reputation of

15.

marriage, the court further stated:

- « »(T)he weight of such

evidence is to be determined

to a great degree by the stan-

dards of living and the char-

acter of the people in the

community. There was evidence

that, when Crabtree and Annie

Leopold were living in

Tombstone, many men and women

were living there together who

were not married, and that

fact was generally known. In

such circumstances evidence

of repute that a man and

woman who were living together

were married might be entitled

to less weight than would be

given to similar evidence in

a community where correct

standards of conduct were more

strictly observed. Id. at 126.

If cohabitation in "illicit inter-

course" in Tombstone, Arizona in 1881

was not treated as cohabitation "as

married persons" by the Supreme Judicial

Court in 1928, petitioner could not

reasonably be expected to anticipate the

holding of the Supreme Judicial Court

in this case that sharing a bedroom with

a man in Boston in the 1980's ona

16.

regular basis constitutes an outward

appearance of marriage. It may not

reasonably be held that petitioner was

bound to anticipate such a construction,

and thus raise federal constitutional

challenges to the outward appearance

clause at the outset of this litigation.

For this reason, the ruling of the

court below that petitioner's consti-

tutional claims were not seasonably

raised presents no bar to the exercise

of certiorari jurisdiction by this

court.

“The circumstances of this case

satisfy the requirement that federal

claim be raised at the earliest oppor-

tunity. The federal questions which

petitioner asksthis court to review

were briefed and argued before the

Massachusetts Supreme Judicial Court.

See, Supplemental Brief of the Appellant

to the Supreme Judicial Court at pp. 9-

17. See also, Pruneyard Shopping Center

v. Robins, 447 U.S. 74, 85 n. 9 (1980)

(federal constitutional claim first

raised before State Supreme Court in

brief in response to amici curiae briefs.

Massachusetts' state procedural

rule should not bar review of

petitioner's federal constitutional

claims for an additional reason. The

Massachusetts Supreme Judicial Court

declined to consider petitioner's con-

stitutional claims, although possessed

of power to do so under state law.

This Court stated the federal rule in

Williams v. State of Georgia, 349 U.S.

375 (19535) s

A state court may not, in

the exercise cf its discretion,

decline to entertain a consti-

tutional claim while passing

upon kindred issues raised in

the same manner. Id. at 383.